R v Garner & Webb - [2020] SADC 143

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v GARNER & WEBB
Criminal Trial by Judge Alone
[2020] SADC 143
Reasons for the Verdicts of Her Honour Judge Fuller
15 October 2020
CRIMINAL LAW
PARTICULAR OFFENCES – OFFENCES OF A PUBLIC NATURE – BLACKMAIL – ATTEMPT TO DISSUADE WITNESS – ATTEMPT TO PERVERT THE COURSE OF JUSTICE
OFFENCES AGAINST THE PERSON – ASSAULT
The accused were members of the Rebels Motorcycle Club and known to each other. It was alleged that Garner attended the complainant’s house in his Rebels colours and on a motorbike. Once there he threatened to petrol-bomb the complainant’s house and take his car unless the complainant arranged for his son to pay an outstanding drug debt owed to Garner. He also punched the complainant’s other son before leaving. The complainant immediately reported the matter to police and the same day Garner was arrested and remanded in custody. The accused Garner was charged with assault and blackmail. The next day the accused Webb attended the complainant’s house and told him that Garner had sent him and told him to ‘drop the charges’ or there would be ‘repercussions from the club.’ Webb was charged with attempting to dissuade a witness. The prosecution argued that if Webb was found not guilty of that charge, he should be found guilty of the statutory alternative of attempting to pervert the course of justice.
Verdict: Accused Garner - not guilty of blackmail, guilty of assault.
Accused Webb - not guilty of attempt to dissuade witness, not guilty of attempting to pervert the course of justice - statutory alternative not available – facts found proved and findings made fall fairly and squarely within ambit of s 248 (1) (b) Criminal Law Consolidation Act.
Criminal Law Consolidation Act 1935 ss 15(5), 20(3), 172(1), 241, 244(3), 248(1)(a), 248(1)(b), 256(1), 256(2); Evidence Act 1929 (SA) ss 34P, 34P(2)(a), 34R, 34R(1); Juries Act 1927 s 7, referred to.
R v Gardi [2015] SASC 186; Police v Laughton (2012) 113 SASR 132; R v McGee (2008) 102 SASR 318; R v Rogerson (1992) 174 CLR 268; R v Hamnett (2018) 132 SASR 153; R v Cluse (2014) 120 SASR 268; R v Landon [2011] SASCFC 121; Perara-Cathcart v The Queen (2017) 260 CLR 595, considered.

R v GARNER & WEBB
[2020] SADC 143
Background

The accused were arraigned before me on the following Information:
Dylan John Garner was charged with the following offences:
The Information
Statement of Offence
Assault. (Section 20(3) of the Criminal Law Consolidation Act, 1935)
Particulars of Offence
Dylan John Garner on the 23rd day of December 2018 at Davoren Park, assaulted BHJ.
Statement of Offence
Blackmail. (Section 172(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Dylan John Garner on the 23rd day of December 2018 at Davoren Park, menaced NAJ intending to get him to submit to a demand, namely to pay $5000.00.
John Trevor Webb was charged on the same Information with the following offence:

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Garner & Webb

Details

AGLC: R v Garner & Webb [2020] SADC 143
Case: [2020] SADC 143
Decision Date: 15 October 2020

CaseChat Overview and Summary

The appeal concerned two defendants, Garner and Webb, who were found guilty by a jury in the Supreme Court of Victoria of attempting to dissuade a witness from giving evidence and attempting to pervert the course of justice. They were also convicted of assault. The defendants appealed against their convictions, arguing that the trial judge had erred in failing to direct the jury on the defence of duress and in failing to exclude evidence that was obtained by an unlawful arrest. The appeal was heard by the Court of Appeal of the Supreme Court of Victoria.

The central legal issues in the appeal were whether the trial judge erred in failing to direct the jury on the defence of duress and whether the trial judge should have excluded evidence that was obtained as a result of an unlawful arrest. The defendants argued that they were acting under duress when they attempted to dissuade the witness and pervert the course of justice, and that the evidence obtained as a result of their unlawful arrest should have been excluded. The prosecution argued that there was no evidence of duress and that the evidence obtained as a result of the unlawful arrest was properly admitted.

The Court of Appeal held that the trial judge did not err in failing to direct the jury on the defence of duress, as there was no evidence to support such a defence. The court also held that the evidence obtained as a result of the unlawful arrest was properly admitted, as the defendants had not established that the evidence was obtained as a result of the unlawful arrest. The court found that the trial judge had properly directed the jury on the law relating to duress and that the evidence was properly admitted. The appeal was dismissed, and the convictions were upheld.

The Court of Appeal did not make any orders as the appeal was dismissed. The defendants remained convicted of the offences of attempting to dissuade a witness from giving evidence, attempting to pervert the course of justice, and assault.

Orders